Coarse debate: 'Defense' of marriage wrecks contracts

On July 1, a new Virginia law, "The Affirmation of Marriage Act," took effect banning same-sex unions, domestic partnerships, and similar arrangements granted by other states. It was passed to expand an existing ban on gay marriage. However, the wording of the law is so broad that it threatens to nullify private wills, medical directives, and other private contracts entered into by same-sex couples.

This legislation is the most legally restrictive in the nation. It declares, "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges of marriage is prohibited. Any such civil union, partnership contract, or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia, and any contractual rights created thereby shall be void and unenforceable."

Although more than two-thirds of the members of the Virginia House and Senate voted for the bill (officially referred to as HB751), Governor Mark Warner moved to strike the vaguest parts, including the words "partnership contract or other arrangement." But his recommendation was rejected by a vote of 35 to 65 in the House. Insulated in a final vote by a two-thirds majority, the bill passed into law without the Governor's signature.

Supporters of the law insist that it will have no effect on advance medical directives, power-of-attorney filings, hospital visitation rights, health-insurance coverage, or wills, as feared by gay-rights advocates and legal scholars. Delegate D. A. Coyle claimed, "If I believed that this bill changed Virginia's law with respect to any of these privileges, I would have voted against it."

But one wonders why the law was passed in the first place. Several scholars noted that, without the additional "partnership contract" language, it would have been redundant or simply unnecessary. Marriages and civil unions are already prohibited by a 1997 law, but the text of that law referred only to same-sex marriage. It did not cover the range of new options being made available to same-sex couples in other states. The innovation of the new law is the "partnership contract" language.

And that tells us something important about its intent.

Delegate Robert G. Marshall of Manassas, who has a long record of anti-gay statements and votes, sponsored the bill. As recently as January of this year, he proposed legislation to deem any judge who ruled against Virginia's earlier defense of marriage act "unfit" or "guilty of malfeasance in office." Offending judges would have been subject to impeachment and removal from the bench. Fortunately, the proposed bill was defeated in committee.

While not every delegate who voted for HB751 shares Marshall's extreme agenda, most supported the bill in response to the Massachusetts Supreme Court's recent decision to allow gay marriage. They were justifiably concerned about having a matter of public policy imposed on them. But, in the process, they should have shown greater regard for the rights of their own citizens.

Even a principled opponent of same-sex marriage and civil unions should be able to see that this new law unfairly denies the right of individuals to enter into contracts and agreements with one another, rights protected by both the Virginia and U.S. constitutions.

These contracts, while made in private, have public benefits. They order decisions about property, guardianship, and in some cases even life– decisions that should not rest with the state. To rob same-sex couples of the ability to arrange their own affairs, the state denies them their dignity and autonomy as individuals.

Ironically, by passing this overly broad law, the Virginia General Assembly has set itself up for the same judicial challenges that it sought to avoid. Equality Virginia, a gay-rights group, is already planning to file a lawsuit. The litigation will inevitably cost the Commonwealth millions of dollars. And one website, virginiaisforhaters.org, is already advocating a boycott by out-of-state visitors.

But perhaps the greater toll will be the further coarsening of the political discourse. Conservatives will resent the intervention of "activist" judges, and gay-rights advocates will resent the use of political means to short-circuit legitimate debate about controversial subjects. In the end, little will be gained, except perhaps an excess of defensiveness and self-righteousness on both sides.

Could the acrimony and the injustice of the current law have been avoided by a simple compromise on its wording? Without a doubt.

Ward Brown studied English as a UVA graduate student and is a freelance writer living in northern Virginia.